California

The California Supreme Court ruled today that municipalities possess the legal authority to prohibit the establishment of medical cannabis dispensaries.

The unanimous ruling upheld a 4th District Court of Appeals opinion (City of Riverside v. Inland Empire Patients’ Health and Wellness Center, Inc.) which held that local zoning measures banning the establishment of brick-and-mortar facilities that engage in the distribution of cannabis to state-authorized persons are not preempted by state law. Other lower courts had ruled against such local bans, arguing that cities can’t use zoning laws to bar activity legal under state law.

It is estimated that some 200 California cities presently impose moratoriums on medicinal cannabis facilities. At least 50 municipalities have enacted local regulations licensing dispensaries.

Opined the Court:

“We have consistently maintained that the CUA (the California Compassionate Use Act aka Proposition 215) and the MMP (the Medical Marijuana program Act) are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”

Although language included in Proposition 215 explicitly called for the state government “to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana,” to date, lawmakers have failed to enact any specific statewide regulations regarding the retail production and distribution of cannabis to those patients authorized to consume it.

Commenting on the ruling, California NORML Coordinator Dale Gieringer said, “The court essentially affirmed the status quo. Local governments may choose to allow or limit dispensaries as they please. The unfortunate result of this decision is to leave many needy patients without legal access to medical marijuana in their communities, thereby promoting illegal black market suppliers. It is time for the state and federal governments to step up to the plate and fulfill the mandate of Prop 215 to implement a system of ‘safe and affordable’ access for all patients in medical need.”

Legislation is presently pending in both the California Assembly (AB 473) and Senate (SB 439) to impose statewide regulations governing the dispensing of marijuana produced for medical purposes.

Full text of the California Supreme Court’s opinion is available online here.

In an interview with the Denver Post, published this week, House Minority Leader Nancy Pelosi spoke about the marijuana legalization initiatives passed in Colorado and Washington in November.

When asked, “What are the measures in Washington (DC) that might address states that legalize marijuana and what is your view of federal policy?,” Minority Leader Pelosi expressed her support of state laws regarding marijuana and encouraged a tax and regulate policy:

Q: What are the measures in Washington (DC) that might address states that have taken steps to legalize marijuana and what is your view of the federal role?

Rep. Pelosi: I support the leadership of Jared Polis, who has been a leader on this issue as well as other members..I understand some of the Republican members support the law now that is passed, even if they didn’t before.

But in any case, to answer your question, what is my position regarding the states that have medical marijuana or recreational marijuana as the law of their states: I think that has to be respected. I think tax and regulate.

In order to do that, there has to be a level of respect for the fact, that if you are going to have recreational marijuana, someone is in business to do that and they have to have tax treatment in order for them to function as a business.

How the state of Colorado interacts with the federal government on the taxation issues is something they have to work out, but I think they should.

Representative Pelosi now joins the growing list of prominent politicians who are coming out in support of rational marijuana policy. Take a minute of your time and click here to easily contact your Representative and urge him or her to support Representative Polis’ legislation, HR 499: The Ending Federal Marijuana Prohibition Act of 2013, and put an end to our nation’s war on cannabis consumers.

According to survey data released this week by The Field Poll, a record number of Californians now support legalizing and regulating marijuana in a manner similar to alcohol.

The poll, conducted February 5-17 among 834 registered California voters, found that 54% support making the use of marijuana legal, with age and other controls like those that apply to alcohol, only 43% were opposed. This is the highest level of support for legalization since The Field Poll began asking the question. In their 2010 poll, only 50% of California voters supported legalization and 46% were opposed.

This survey also found that an overwhelming 72% of Californians support the state’s medical marijuana program and 52% favor allowing medical marijuana dispensaries to open in their town.

California narrowly rejected Proposition 19 to legalize marijuana in 2010, but clearly public opinion has continued to move in our favor since then. It is reasonable to expect that by 2016, when many believe there will be another voter initiative to legalize marijuana, support will have reached the critical mass required to approve of such a measure.

Huffington Post reporters Ryan Grimm and Ryan Reilly publish one of the most comprehensive and insightful pieces to date on the current friction between state and federal laws regarding cannabis in America, and conclude that federal prosecutors at the regional level—not elected policymakers or department leaders in Washington—are largely creating an ad hoc enforcement policy from state-to-state.

Defense Attorney Lauren K. Johnson won a major court victory for parents who legally use marijuana for medical purposes last week in Los Angeles. In the case of Drake A. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that there was no evidence showing that the defendant, a father, is a substance ab­user for simply being a legal medical marijuana patient. The court confirmed that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor’s approval, isn’t necessarily a drug abuser.

The father, “Paul M.” was placed under DCFS (Department of Children and Family Services) supervision after he testified in an October 2011 hearing that he used medical marijuana about four times a week for knee pain. During that same hearing, he also stated that he never medicates in front of his children, nor is he under the influence while they are in his care. DCFS supervision requires drug counseling, parenting classes and random drug testing. During subsequent drug screenings the father tested positive for marijuana, and negative for all other drugs. As a result, the Superior Court of Los Angeles ruled that the child was to become a “dependent of the court based on the trial court’s finding that [the] father’s usage of medical marijuana placed the child at substantial risk of serious physical harm or illness…”.

“Paul M.” appealed the former court’s ruling, which was challenged in the Second Appellate District of California. The Appellate court subsequently ruled in favor of reversing the Superior court’s judgment. The official ruling stated “[that the] DCFS failed to show that [the] father was unable to provide regular care for Drake [the minor child at issue] due to father’s substance abuse. Both DCFS and the trial court apparently confused the meanings of the terms ‘substance use’ and ‘substance abuse’.”

Johnson issued a press release noting that this is the first case to distinguish between marijuana use and abuse with regards to child protection laws. “In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the ‘mere usage of drugs,’ including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court.” She went on to say, “The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states. We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm.”

This has been a pervasive issue in California, as well as other medical marijuana states. Legal patients have lost custody of their children and been forced to turn their children over to a juvenile protection agency. The NORML Women’s Alliance has been working hard to bring this issue to the forefront. NORML Women’s Alliance Director Sabrina Fendrick issued the following statement; “This ruling is a small victory in our fight for legal marijuana patients’ parental rights. We hope that future judicial hearings, as well as child protection agencies will utilize this judgment and adopt new policies that reflect the Appellate court’s ruling.”